Filed 9/13/22 Sculls v. Boardners CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JONNY SCULLS, et al.,

Plaintiffs and Appellants,

v.

BOARDNERS, INC.,

Defendant and Respondent.

B309933

(Los Angeles County Super.

Ct. No. BC665786)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Kristin S. Escalante, Judge. Affirmed.

Law Offices of Edward Y. Lee, Edward Y. Lee and Angela 

S. Lee, for Plaintiffs and Appellants.

Freeman Mathis & Gary, Stephen M. Caine and Robert A. 

Latham, for Defendant and Respondent.

__________________________
2

Plaintiffs Jonny and Lacey Sculls appeal after the trial 

court granted summary judgment on their premises liability 

claim against defendant Boardners, Inc. The Sculls argue the 

trial court erred in concluding Boardners had no duty to provide 

additional or more competent security guards at its nightclub 

that could have prevented a brief physical altercation between 

the Sculls and acquaintances. We affirm because the Sculls have 

failed to show the existence of a triable, material issue of fact 

that Boardners owed the Sculls a duty to protect against the 

harm that occurred during the brief altercation.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

Boardners is a corporation that owns a bar and nightclub in 

Hollywood. The bar area has a capacity of 69; the nightclub area 

can hold 408 people, including the upstairs, downstairs and patio. 

For more than 20 years, Boardners has hosted a weekly Saturday 

night event called Bar Sinister in its nightclub area. 

Boardners employs security guards and stations some of 

them at the entrance of the club and at a glass door that 

separates the Boardners bar and restaurant from the nightclub; 

other guards roam the venue. The security guards are 

responsible for monitoring patron behavior. Boardners requires 

its security guards to obtain “guard cards,” which involves annual 

security guard training and certification. The owner of the club, 

who only hires guards with experience, requests the guards 

undergo their training with the Los Angeles Police Department. 

All guards are instructed on Boardners’s current security guard 

policies and procedures. 

Plaintiffs Jonny Sculls, Lacey Sculls, and Erin Skold, and

defendants Tim Skold and Tiffany Lowe were regular patrons at 
3

the club. Prior to the incident, the Sculls and Skolds had been 

friendly acquaintances. They had been to each other’s homes for 

social gatherings. Tiffany Lowe was a friend and colleague of the 

Skolds. Lacey Sculls had been friends with Tiffany Lowe – she 

had invited Tiffany to her bachelorette party. But it was also 

undisputed that Lacey and Tiffany had had several verbal 

conflicts over the years. There was, however, no history of 

violence among any of the parties. 

2. The Physical Altercation at Boardners 

On Saturday, January 29, 2017, four security guards were

in the nightclub and one more in the main bar. At 2:00 a.m., 

Lacey and Jonny Sculls, Erin and Tim Skold, and Tiffany Lowe

were at Bar Sinister. The Skolds and Lowe occupied part of the 

nightclub known as a VIP area, which was accessible to all 

patrons and near an exit.1 Around 2 a.m., Tiffany Lowe 

encountered Lacey Sculls near the VIP area, and they had a 

minute-long argument before parting ways. About five to ten 

minutes later, Jonny and Lacey Sculls walked into the VIP area. 

Lacey and Tiffany had an argument that turned physical. Jonny 

1 Earlier in the evening, the Skolds had been at another 

nightclub with Lowe when they were approached by a Bar 

Sinister representative and invited as “VIP guests” to Bar 

Sinister. 

The trial court summarized testimony from the Skolds: 

“When the group arrived, they were escorted to what the Skolds 

characterize as ‘the VIP area.’ Tim Skold appreciated being 

seated in a VIP booth because he is a musician who is popular 

with patrons of Bar Sinister and fans would sometimes intrude 

on his group. The VIP area was not roped off but Erin [Skold] 

testified that ‘everyone knew’ it was the VIP area. One of the 

exits of the club is through the VIP area, so patrons were able to 

walk through the area.”
4

Sculls, Tim Skold, and Erin Skold joined the physical altercation.

The Skolds and the Sculls disagree about who initiated the 

incident. For our purposes, it matters not who did what to whom; 

suffice it to say that there was pushing, shoving, hair pulling, 

and falling to the ground. Punches may have been thrown.

The Skolds and Jonny Sculls testified that the entire 

altercation (verbal and physical) lasted less than a minute.

Lacey Sculls was inconsistent in her statements concerning the 

length of the altercation—estimating less than a minute to three 

or four minutes. Security guards were not present in the VIP 

area immediately prior to or during the altercation. The Sculls 

then either left or were escorted out by security. Security later 

escorted the Skolds’s party out a different exit. 

3. Lawsuits Related to the Fight at Boardners

The Sculls sued Tiffany Lowe and Tim Skold for assault 

and battery, and Boardners for premises liability in Los Angeles 

Superior Court Case No. BC665786. The Sculls alleged that on 

January 29, 2017 while at Bar Sinister, they were physically 

attacked by Tiffany Lowe and Tim Skold, with resulting personal 

injuries. The trial court’s August 27, 2020 minute order indicates 

Tiffany Lowe is in default and the claims against Tim Skold have 

been dismissed.2

In their complaint, the Sculls alleged Boardners “owed to 

[p]laintiffs a duty to protect them from the tortious and/or 

criminal acts of said [Boardners]’ own employees, agents, security 

personnel and/or other third persons occurring on the [p]remises 

by maintaining the [p]remises in a reasonably safe manner for 

2 Tim Skold filed a cross-complaint, alleging that he was 

injured in the altercation and that the Sculls were the aggressors. 

The cross-complaint was also dismissed. 
5

their intended purpose. [¶] . . . [Boardners] negligently 

maintained, managed, controlled, promoted and operated the 

[p]remises by failing to adequately train, supervise and/or control 

the action of its agents, personnel and/or employees, resulting in 

a failure to protect [p]laintiffs from an assault and battery.” The 

complaint alleged that plaintiffs sustained injuries.

The Sculls claimed that Boardners “breached [its] duty of 

care to [p]laintiffs by failing to properly employ security guards 

or personnel to protect the safety of their customers despite 

having reasonable cause to anticipate acts such as the ones 

employed by [d]efendant Lowe and [d]efendant Skold and the 

probability of injury resulting therefrom.” The Sculls asserted 

that Boardners “knew or in the exercise of reasonable care should 

have known that the acts such as the ones employed by 

[d]efendants Lowe and Skold were reasonably anticipated to 

occur,” and that Boardners “negligently failed to take steps to 

either make the Premises safe or to warn [p]laintiffs about the 

dangers.” 

In a separate action (Case No. 19STCV03569) which was 

consolidated in the trial court with the Sculls’s case, plaintiff 

Erin Skold alleged she was injured in the altercation and 

asserted claims for assault and battery against the Sculls and a 

premises liability claim against Boardners. 

4. Summary Judgment

On May 13, 2020, Boardners moved for summary 

judgment, arguing it had no duty to protect the Sculls or Erin 

Skold because Boardners could not have reasonably anticipated

an altercation among people who had an amicable relationship, 

especially where the incident had lasted less than a minute. 

Boardners argued nothing in the record suggested that the 
6

parties had ever been involved in a previous physical altercation

with each other, and Jonny Skull and Tim Skold had testified 

that “they had no bad blood with one another.” Boardners

explained, “The undisputed facts in the case show that the fight 

lasted approximately 40 seconds from the time Tiffany and Lacey 

started it until Tim and Jonny are getting helped up from the 

ground. Tim Skold, who was only feet away from Tiffany and 

Lacey at the time of the incident, testified that it was only five (5) 

seconds, at most, between the time he heard yelling until he 

ended up on the floor.” Boardners argued, “[T]here has not been 

any evidence presented by any [p]laintiffs pointing out any 

factual inadequacy of Boardners’ security or how it could ever be 

liable to any of the [p]laintiffs under a premises liability theory.” 

Boardners’s motion was supported by testimony from its 

owner stating there had been no consistent pattern or history of 

fighting at Bar Sinister.3 The owner’s deposition testimony 

described the club’s security guard training, duties, and locations 

in the club (as described above). Boardners also produced 

deposition testimony from plaintiffs showing the amicable 

relationship they had with those involved in the altercation. 

Boardners attached video footage of the physical altercation 

taken from a security camera overlooking the VIP area. The 

video showed that the verbal and physical altercation was very 

brief—less than a minute.

3 Boardners’s owner was asked in her deposition whether 

there was “any history of rowdy behavior fights that start at Bar 

Sinister events.” She responded that “it’s a bar so there’s all 

sorts of exciting activity that happens at a bar.” She elaborated

that she was not aware of any “consistent history” of fights at the 

bar and knew of no more than one or two incidents. 
7

The Sculls and Erin Skold opposed the motion. We only 

discuss the Sculls’s arguments as Erin Skold’s case is not at issue 

on appeal. The Sculls argued that Boardners failed to stop the

fight as soon as possible after it started, and Boardners failed to 

provide a staff adequate to police the premises. They asserted 

these points were evidenced by testimony from the parties that

they did not observe or were unable to recall seeing security or 

staff in the VIP area while they were there. The Sculls argued 

that because Tim Skold was invited to Bar Sinister by a 

Boardners employee while at another bar and because he arrived 

intoxicated, “Boardners should have known that Tim, and 

possibly others in his group, could become obstreperous.” Lastly, 

the Sculls asserted Boardners failed to provide adequate security.

The trial court granted Boardners’s motion for summary 

judgment against the Sculls (as well as Erin Skold). The court

explained its ruling in a 12-page order, stating in part:

“To the extent that the plaintiffs’ claims are based 

on the allegation that Boardners should have 

employed additional security guards, the Court 

concludes that Boardners is entitled to judgment in 

its favor. The Supreme Court has held, as a matter 

of law, that requiring a bar owner to provide security 

guards imposes a significant burden and therefore 

the plaintiff must demonstrate a heightened degree 

of foreseeability. [Citation.] An even higher degree 

of foreseeability is required when defendant has 

employed security guards but the plaintiff contends 

that even more guards should have been hired. 

Boardners, as the moving party, bears the initial 

burden of affirmatively negating the issue of 
8

heightened foreseeability or of showing that 

plaintiffs do not have and cannot reasonably obtain 

such evidence. The Court finds that Boardners has 

[sic] its initial burden here. As previously noted, 

Boardners presented evidence that it had provided 

four security guards to cover the Bar Sinister event 

and that there had only been one or two incidents 

involving injuries in the last five years. The Delgado

[v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado)]

Court found that a record of ‘a few prior altercations 

between patrons’ does not give rise degree of 

heightened foreseeability that would require a bar to 

provide additional security guards. (Delgado, supra, 

36 Cal.4th at 245).

“The burden thus shifted to the plaintiffs to raise a 

triable issue of fact as to this issue, and specifically 

evidence of prior similar incidents that could have 

been avoided by more security guards. The plaintiffs 

have provided no evidence regarding any prior 

altercations at the bar involving any of Boardners’

patrons that would support a finding of heightened 

level of foreseeability here. . . . Given the absence of

evidence of relevant prior altercations at the bar 

that would support the need for additional security 

guards, the plaintiffs have failed to raise a triable 

issue of fact that Boardners owed a duty to supply 

additional security guards.
9

“The Sculls and Erin Skold also argue that 

Boardners should have intervened when the physical 

altercation began. To meet its initial burden as to 

this claim, Boardners focuses on the fact that the 

entire incident was over within seconds or minutes. 

The time estimates for the entire event - including 

the verbal altercation leading up to the physical 

fight - range from 30 to 40 seconds to 3 to 4 minutes. 

Jonny Sculls estimated that the physical altercation 

lasted about 20 seconds and that the entire incident, 

including the verbal altercation between Lowe and 

Lacey, lasted only about 40 seconds. Erin Skold 

testified [the] altercation lasted about 40 seconds, or 

less than a minute. Tim Skold estimated that the 

physical altercation lasted only about 5 seconds. 

Lacey Sculls is the only witness to provide a 3-to-4-

minute time estimate, and she admits that despite 

the verbal insults, the physical attack by Tiffany 

Lowe was ‘completely unexpected’ and thus 

unforeseeable. All of the participants testified that 

the altercation quickly resolved and that all 

participants immediately left or were escorted by 

security off the premises. The surveillance video 

submitted supports the same conclusion. Further, 

other than saying vaguely that Boardners’ security 

should have intervened in the altercation, no party 

identifies any specific action that Boardners could or 

should have taken.

“[¶] . . . [¶]
10

“In short, given the lack of evidence that Boardners’

personnel had knowledge of aggressive or 

obstreperous behavior, the plaintiffs have not 

established a duty arising from allowing a person 

who had become obstreperous and aggressive to 

remain on the premises. The evidence shows that 

when the physical altercation occurred, both sets of

patrons either left immediately or were immediately 

escorted off the premises by security. There is no 

evidence that Boardners’ had any information 

regarding an imminent altercation prior to that 

point.

“The Sculls and Erin Skold also suggest that the bar 

should have ejected the others because members of

the group were visibly intoxicated. While the 

evidence shows that Tim Skold, Lacey Sculls and 

other members of the group had been drinking on 

the night in question, the evidence is not sufficient to 

raise a triable issue of fact that Boardners knew that 

they were so intoxicated that they presented a 

foreseeable risk of a physical altercation. As 

previously discussed, the Sculls and the Skolds were 

regulars at the bar. There never had been any 

physical altercations involving them. There is no 

evidence that the level of intoxication on the night in 

question was unusual.”
11

The trial court entered judgment in favor of Boardners and 

against the Sculls and Erin Skold on December 4, 2020. 

Both the Sculls and Erin Skold filed timely notices of 

appeal. Their appeals (respectively, appellate case numbers 

B309933 and B310751) were consolidated on April 22, 2021. Erin 

Skold did not file an opening brief and her appeal was dismissed 

on October 25, 2021. Only the Sculls’ premises liability claim 

against Boardners is at issue on appeal.

DISCUSSION

The Sculls argue they produced sufficient evidence to

establish a triable issue of fact as to whether Boardners employed 

a sufficient number of or sufficiently competent security guards. 

“On appeal after a motion for summary judgment has been 

granted, we review the record de novo, considering all the 

evidence set forth in the moving and opposition papers except 

that to which objections have been made and sustained. 

[Citation.] Under California’s traditional rules, we determine 

with respect to each cause of action whether the defendant 

seeking summary judgment has conclusively negated a necessary 

element of the plaintiff's case, or has demonstrated that under no 

hypothesis is there a material issue of fact that requires the 

process of trial, such that the defendant is entitled to judgment 

as a matter of law.” (Guz v. Bechtel National Inc. (2000) 24 

Cal.4th 317, 334.)

1. Premises Liability and Employment of Security 

Guards

“The elements of a negligence claim and a premises liability 

claim are . . . a legal duty of care, breach of that duty, and 

proximate cause resulting in injury.” (Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1158.) Although at times on appeal,
12

Boardners argues there was no breach of duty or proximate 

cause, Boardners primarily argued the absence of duty in its 

summary judgment motion. The Sculls’s opening brief – they 

filed no reply brief – also addresses the three elements of 

premises liability. Nonetheless, we frame our discussion in terms 

of whether Boardners had a duty to protect plaintiffs from this 

type of altercation as this was the basis for the motion and the 

court’s ruling.

4 

The “existence of a legal duty is a question of law for the 

court to determine [citation], that foreseeability is a ‘crucial 

factor’ in determining the existence and scope of a legal duty 

[citation], and that ‘[f]oreseeability, when analyzed to determine 

the existence or scope of a duty, is a question of law to be decided 

by the court . . . .’ ” (Delgado, supra, 36 Cal.4th at p. 237.)

There is a special relationship between business 

proprietors, like bars, and their patrons such that “a proprietor’s 

‘general duty of maintenance, which is owed to tenants and 

patrons, . . . include[s] the duty to take reasonable steps to secure 

common areas against foreseeable criminal acts of third parties 

that are likely to occur in the absence of such precautionary 

measures.’ ” (Delgado, supra, 36 Cal.4th at p. 235, italics 

omitted.) 

To assess whether the business proprietor owes a 

particular duty, “the court in each case (whether trial or 

appellate) [must] identify the specific action or actions the 

plaintiff claims the defendant had a duty to undertake. ‘Only 

after the scope of the duty under consideration is defined may a 

4 As we briefly discuss below, our disposition of the appeal 

would be the same even if it were founded on the breach of duty 

or proximate cause elements.
13

court meaningfully undertake the balancing analysis of the risks 

and burdens present in a given case to determine whether the 

specific obligations should or should not be imposed on the 

landlord.’ [Citation.] . . . . [T]he full analytical process [occurs] 

this way: ‘First, the court must determine the specific measures 

the plaintiff asserts the defendant should have taken to prevent 

the harm. This frames the issue for the court’s determination by 

defining the scope of the duty under consideration. Second, the 

court must analyze how financially and socially burdensome 

these proposed measures would be to a landlord, which measures 

could range from minimally burdensome to significantly 

burdensome under the facts of the case. Third, the court must 

identify the nature of the third party conduct that the plaintiff 

claims could have been prevented had the landlord taken the 

proposed measures, and assess how foreseeable (on a continuum 

from a mere possibility to a reasonable probability) it was that 

this conduct would occur. Once the burden and foreseeability 

have been independently assessed, they can be compared in 

determining the scope of the duty the court imposes on a given 

defendant. The more certain the likelihood of harm, the higher 

the burden a court will impose on a landlord to prevent it; the 

less foreseeable the harm, the lower the burden a court will place 

on a landlord.’ ” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 

1214.)

When a plaintiff claims a business proprietor had a duty to 

provide security guards, or in this instance more security guards, 

the plaintiff’s burden is great: “only when ‘heightened’ 

foreseeability of third party criminal activity on the premises 

exists—shown by prior similar incidents or other indications of a 

reasonably foreseeable risk of violent criminal assaults in that 
14

location—does the scope of a business proprietor’s specialrelationship-based duty include an obligation to provide guards to 

protect the safety of patrons.” (Delgado, supra, 36 Cal.4th at 

p. 240, italics omitted.)

2. The Sculls Failed to Show Boardners Had a Duty to 

Employ Additional Security Guards

The Sculls argued that Boardners should have hired 

additional security guards. Such a security measure is, under 

the authorities cited, considered particularly burdensome on the 

proprietor, and requires a heightened degree of foreseeability of 

criminal activity on the premises. (Delgado, supra, 36 Cal.4th at 

p. 240.) Thus, the Sculls were required to show a high likelihood 

that additional security guards were necessary to protect against 

altercations of this sort. 

In its summary judgment papers, Boardners demonstrated 

that physical altercations were not foreseeable, as there had been 

only a handful of undefined incidents in the past. Boardners

employed four trained and certified security guards at different 

locations within the club. In support of its argument that this 

type of physical altercation was not foreseeable, Boardners 

pointed to the fact the Sculls, Skolds, and Lowe were friendly and 

had no history of violent altercations among themselves or at Bar 

Sinister. Lacey Scull admitted the violence was unexpected, and 

the parties generally stated the physical fight ended very quickly. 

There is no evidence whatsoever that Boardners knew of 

aggressive behavior among the parties prior to the incident. Any 

speculation that Boardners could have anticipated the altercation

or that additional security guards would have prevented any

injuries was just that—speculation. (C.f. Delgado, supra, 36 

Cal.4th at p. 250 [the court found there was a duty to protect 
15

plaintiff where the security guard was aware there was an 

impending fight and directed plaintiff to leave bar but failed to 

escort plaintiff to his car or to coordinate with the outside 

security guard to keep the assailant and his fellow gang members 

away from plaintiff].) 

The undisputed evidence was that the nightclub itself had 

no history of fights (only one or two incidents). Appellants 

pointed to nothing in Boardners’s history that would reasonably 

indicate the need for additional security. In Delgado, our 

Supreme Court explained, “few prior altercations between 

patrons . . . [are] insufficient evidence of heightened 

foreseeability in the form of prior similar incidents or other 

indications of a reasonably foreseeable risk of a violent criminal 

assault on defendant’s premises that would have imposed upon 

defendant an obligation to provide any guard, or additional 

guards, to protect against third party assaults.” (Delgado, supra, 

36 Cal.4th at p. 245.)

Boardners’s evidence satisfied its prima facie obligation to 

show it was entitled to judgment as a matter of law, and shifted 

the burden to the Sculls to show that the premises were 

foreseeably unsafe without additional security guards. The 

Sculls produced no such evidence. As an example, no expert 

testified on the number of security guards typically employed in 

comparable establishments or that additional security guards 

would have prevented any foreseeable harm. 

The Sculls were loud and clear in their briefing that more 

guards would have prevented the disturbance, counsel’s 

insistence was just that – insistence, without supporting 

evidence. For example, the Sculls argue that because Boardner’s 

property is large and on average 350 guests enter and leave Bar 
16

Sinister throughout the night, four security guards were 

insufficient. But the Sculls offered no evidence on the number of 

guests on the premises at the time of the altercation or the 

reasonable ratio of guards to patrons based on the type of 

establishment and any prior history of violence.5

We conclude, as a matter of law, that the evidence failed to 

show that Boardners had a duty to hire additional security 

guards.

3. Plaintiffs Failed to Show Boardners Owed the Sculls 

a Duty to Employ “More Competent” Security 

Guards

The Sculls argue on appeal that Boardners also had a duty 

to provide security guards who were more competent than the 

ones employed that evening. In its summary judgment papers, 

Boardners produced evidence that it required its security guards 

to have “guard cards,” obtained through yearly training and 

certification. The owner testified that Boardners only hired 

experienced security guards, and requested the guards to 

undergo training with the Los Angeles Police Department. All 

guards were instructed on Boardners’s current security guard 

policies and procedures. We agree with the trial court that in 

producing this evidence, Boardners satisfied its burden to show 

its guards were competent, shifting the burden to the Sculls. 

5 The Sculls rely on the testimony of Boardners’s owner that 

“it’s a bar so there’s all sorts of exciting activity that happens at a 

bar.” This evidence is insufficient on its own to meet the Sculls’s 

burden. The vagaries of “exciting activity” aside, Boardners’s 

owner explained she was not aware of any “consistent history” of 

fights at the bar. 
17

Again, the Sculls produced no evidence and emphatic assertions 

without supporting evidence do not suffice. 

There was no evidence that the Boardners’s security guards 

were not competent or what additional training was necessary for 

them to achieve the level of competency the Sculls believed was 

legally required. The Sculls argue that “guard cards” do not show 

competency, but that assertion reverses the summary judgment 

burden – they offered no evidence of incompetency or how 

training would have prevented the altercation. The Sculls assert 

that lack of competency was illustrated by their absence from the 

VIP area vicinity when the physical alteration occurred. The 

Sculls rhetorically ask: “What were the security guards doing?

Were they socializing with each other and not performing their 

required job functions? Were they patrolling the entire venue or 

just stationed in certain areas?” Rhetorical questions are no 

substitute for evidence. 

DISPOSITION

The judgment is affirmed. Defendant and respondent 

Boardners, Inc. shall recover its costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J. KIM, J.
Jonny Sculls et al. v. Boardners, Inc.

B309933

BAKER, J., Concurring

I find it difficult in a case like this to fully square our 

Supreme Court’s mode of analysis in Delgado v. Trax Bar & Grill

(2005) 36 Cal.4th 224 (Delgado) with the Court’s more recent 

guidance that a duty analysis must be conducted at a sufficiently 

high level of generality. (See, e.g., Brown v. USA Taekwondo

(2021) 11 Cal.5th 204, 221; Vasilenko v. Grace Family Church

(2017) 3 Cal.5th 1077, 1084 [“Breach, injury, and causation must 

be demonstrated on the basis of facts adduced at trial, and a 

jury’s determination of each must take into account the 

particular context in which any act or injury occurred. Analysis 

of duty occurs at a higher level of generality”]; Cabral v. Ralphs 

Grocery Co. (2011) 51 Cal.4th 764, 774.) But today’s opinion for 

the court faithfully applies Delgado on notably similar facts, and 

I have signed the opinion for that reason.

BAKER, J.